The Baltimore Sun print edition of Sunday, July 2, 2005, devoted a page to a rundown of the nine most likely candidates to be nominated by President Bush as Sandra Day O'Connor's Supreme Court replacement. Try as I might, I can't find this material online, so here's a brief summary, with specific reference to how each potential nominee might vote in abortion cases. (There is a page, "Potential candidates for the high court," available in the online version of The Sun, but it does not have the same information.)
Samuel Alito is a 55-year-old judge appointed in 1990 to the U.S. Court of Appeals for the 3rd Circuit (New Jersey, Pennsylvania, Delaware). He dissented in a case in which the majority on the appeals court overturned a Pennsylvania law requiring notification of the husband by a wife getting an abortion. He is said to adhere to the same judicial principles as current Justice Antonin Scalia. Would almost certainly vote to overturn Roe v. Wade.
Edith Brown Clement, 57, was appointed by President Bush in 2001 to the 5th Circuit Court of Appeals (Texas, Louisiana, Mississippi) and "sailed through the Senate on a unianimous vote." She apparently has never tipped her hand as to how she would vote in abortion cases. Leaning on abortion unknown.
Emilio Garza, 58, serves with Clement on the 5th Circuit Court of Appeals (Texas, Louisiana, Mississippi), to which he was appointed by President Bush's father in 1991. In his decade-plus on the Circuit Court, he has been noted for "uphodling Supreme Court precedents supporting abortion rights." This, of course, is not proof positive that, once on the Court, he would vote to retain Roe. Leans in favor of retaining Roe.
Alberto R. Gonzales is a 49-year-old Harvard Law graduate now serving as Attorney General of the United States. A long-time friend and legal counsel of the President, he has served on the Supreme Court of the State of Texas. While there, he "once chastised Priscilla Owens, whom Bush named to the 5th Circuit Court of Appeals, for her opinion in supporting a Texas law requiring parental notification when minors seek abortions." That's no guarantee, though, that he'd endorse Roe v. Wade once on the federal Supreme Court. Leans in favor of retaining Roe.
Edith Hollan Jones, 56, is (with Clement and Garza) yet another judge on the 5th Circuit Court of Appeals (Texas, Louisiana, Mississippi), appointed in 1985 by the current President's father. Jones wrote in a key 2004 abortion case, "If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' if far more risky and less beneficial, and the child's sentience far more advanced, than the Roe court knew." She called the Roe decision an "exercise of raw judicial power." That "paper trail" alone would seem to make her anathema to abortion-rights supporters. Would almost certainly vote to overturn Roe.
Michael J. Luttig, 51 years of age, was appointed in 1991 to the 4th Circuit Court of Appeals (West Virginia, Maryland, Virginia, North and South Carolina) by the first President Bush. Has both upheld a Virginia law banning "partial-birth" abortions and, later, after the U.S. Supreme Court ruled against such laws, this generally conservative jurist "wrote in 2000 that the state law must be struck down, citing the need to follow precedent." Position with respect to Roe hard to read.
Michael McConnell, 50, was appointed by President Bush in 2002 to the 10th Circuit Court of Appeals (Wyoming, Utah, Colorado, New Mexico, Kansas, Oklahoma). Considered to count Justics Scalia among his "intellectual allies," he has been "fervent in his oppostion to Roe v. Wade." In a Wall Street Journal opinion piece he called Roe "an embarrassment to those who take constitutional law seriously." But during his 2002 confirmation hearings he said Roe was "settled law." Nonetheless, as a hypothetical Supreme Court justice, he probably leans against Roe.
John Roberts is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit. The 50-year-old ws appointed by Bush in 2003. Though he has little track record on abortion as a judge, opponents cite "anti-abortion and other positions he took in writing while working in the Reagan and [first] Bush administrations." But was he just being a lawyer and taking his "client's" side? Position with respect to Roe hard to read.
J. Harvie Wilkinson III is a 60-year-old judge on the 4th Circuit Court of Appeals (West Virginia, Maryland, Virginia, North and South Carolina). A colleague of Luttig, with whom the generally collegial jurist has openly dueled, he was appointed in 1984 by President Reagan. The newspaper rundown did not cite any particular history with respect to the abortion issue. Position with respect to Roe hard to read.
Of these nine, it looks as if only Alito and Jones would as Supreme Court nominees give great aid and comfort to hard-line opponents of Roe. McConnell looks to have put himself in the position of standing by Roe as long as it is "settled law," but once on the Court that made it so, he could well be quite open to "unsettling" it; he's probably the third choice of the anti-Roe contingent. Luttig, Roberts, Wilkinson, and Clement are harder to predict. Each is a "conservative," but one whose abortion track record is too murky to read confidently. Finally, it looks like Garza and Gonzales are the most pro-Roe of the lot, though their seeming let-Roe-stand attitudes are not, by all indications, cast in concrete. Any one of these, if elevated to the Supreme Court, could furnish a fifth vote to overturn Roe.
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